[2017] KEHC 2310 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

HIGH COURT CRIMINAL APPEAL NO. 29, 30 & 31 OF 2011 (CONSOLIDATED)

PETER WAIHIGA KABIRU (NO.29/11)

PAUL MUTEMI KANYI (NO.30/11)

SIMON BABU MWANGI (NO. 31/11) ……. APPELLANTS

-V E R S U S –

REPUBLIC ………………………………..…RESPONDENT

(An Appeal from the conviction and sentence in Nyeri CM’s Criminal case no.67 of 2010 Hon S. Muketi)

J U D G M E N T

On 8/1/10 PW7, No. 53919 P.C. Gilbert Mumeme and PW8, CPL. Koech Omar were based at CID Kitale. They were notified by the DCIO that there were suspected armed criminals headed their way in motor vehicle Reg. No. KBK 280A Toyota Harrier.

In the company of other officers CPL. Mumeme and Omar proceeded to give a car chase and caught up with the KBK 280A on the bumps at the junction near Kitale Cereals Board and KCC. In what can only be described as a dramatic move they blocked the motor vehicle, and came out firing in the air. CPL. Mumeme testified “there were a lot of gunshots from us”. Four men who ended up being the four accused persons in Nyeri C.M. Cr. Case No. 67/2010 alighted and in an act of surrender lay down on the ground.

CPL. Mumeme and CPL. Omar arrested them and put them in the police car. They then proceeded to search the m/v registration no. KBK 280A. They took over the suspects mobile phones, they found school uniforms for Molo Academy. They found no arms, nor any other exhibits of note. They had no idea what offence the four had committed but upon initial interrogation they did tell them they were businessmen.

On 9/1/10 they escorted the four, their motor vehicle and the exhibits they had recovered to Nakuru Police Station. They handed them over to Chief Inspector Maina. The exhibits were 8 mobile phones, male clothes, a uniform from Molo Academy.

The 2 officers were very categorical that those were the only exhibits they found in the motor vehicle.

On 12/1/10, PW 10, No. 56284 CPL. John Okoth together with Sgt. Ngule both based at Murang’a CID were instructed as by the in charge one Mr. Kisaka to go to Nairobi and collect prisoners from the Special Crimes Prevention Unit. The hand over was authorized by one Mr. Katola, and CIP Mango handed over 4 persons and one motor vehicle Reg. No. KBK 280A

They drove to Murang’a Police Station where another search was conducted and surprise! From inside the CD compartment were found a pair of handcuffs, three certificates of appointment of police officer in the name of Sgt. James Mwalime Mike No. 86874, a pocket phone underneath the passenger seat, and one spent cartridge from an AK 47. In the boot were assorted clothes.

An inventory or inventories were prepared, and since one that was produced in court was not signed both PW12, the investigating officer Sgt. Alphones Mbulu and PW11, CPL. John Okoth who conducted the search were non-committal as to who had prepared it. Sgt Mbulu in cross examination said “...I prepared an inventory…Okoth prepared it”. Okoth said, “I prepared the inventory...one inventory had three fingerprints. The one with two thumbprints is a copy…”.

On 19/1/10, the four suspects Peter Waihiga Kaburu, Simon Mbaabu Mwangi, Paul Mutemi Kanyi and Zachary Sinda Kerosia were charged with the offence of robbery with violence c/s 296(2) of the Penal Code. It was alleged that on 15/10/2009, at Murang’a town ship, Murang’a East District within Central Province, jointly, while armed with dangerous and offensive weapons namely iron bars and handcuffs robbed Charles Macharia Maina of cash Ksh. 80,000/= and at, or immediately before, or immediately after the time of such robbery used actual violence to the said Charles Macharia Maina.

For good measure they were also charged with the offence of personating a public officer c/s 105(b) of the Penal Code. It was alleged that on the same date, time and place they jointly, falsely presented themselves to be persons employed in the public service namely police officers and assumed to arrest Charles Macharia Maina.

They pleaded not guilty to these charges. The trial magistrate after hearing 13 witnesses from the prosecution, found that they each had a case to answer. They were put on their defence – and each gave sworn evidence. The 4th accused was acquitted of both counts on the ground that the complainant had testified that he had not seen him at the scene. However, the trial Magistrate proceeded to find the 1st, 2nd and 3rd accused guilty of both counts. Each was convicted and sentenced each to death on count the first count and discharged 2nd count under s.39(1) (sic) I believe she meant s. 35(1) of the Penal Code.

The appellants were represented by

Mr. Ngarua for 1st appellant

Mr. Wahome Gikonyo for 2nd appellant

Mr. Mutembei for 3rd appellant

The state was represented by Ms. Jebet.

The record of appeal shows that the appellants were surprised by the conviction. Each filed a separate appeal but they were consolidated for ease of prosecution.

The main grounds for the appeal were that;

1. There was no evidence to connect them with the said robbery. The complainant alleged that he was robbed in broad day light and could identify his attackers. He gave no descriptions to the police, even to warrant an identification parade.

see Maitanyi v R (1986) KLR 198, Bosco Ziro Kalume Criminal Appeal no 41 of 1988

2. That the trial court failed to consider each of their alibi’s and gave not a single reason for rejecting each of their defence. See Victor Mwendwa Mulinge v R [2014] eKLR, John Odero Omenda &Another v R [2014] eKLR, David Kyalo Justus v R [2013] eKLR

3. The recovery of the only evidence alleged to connect them with the alleged robbery was suspect, unreliable and could not be relied on to support the conviction

4. The evidence given by the police officers who arrested the suspects, and those who conducted investigations was contradictory.

Ms. Jebet for the state conceded the appeal on the grounds that

1. There was insufficient evidence of identification.

2. That the trial magistrate had made the determination that the dock identification by the complainant was worthless.

3. That the trial magistrate had also found that the evidence of recovery of exhibits was rendered weak by the manner in which the police officers handled it. Ms. Jebet submitted that having found that, the trial magistrate should not have proceeded to convict the accused persons on the 2nd count.

4. That the prosecutor’s failure to raise rebuttal evidence on the alibi evidence given by the appellants rendered the case for the prosecution weak. She submitted that the state was of the view that the convictions was unsafe.

I have carefully considered the evidence on record, the submissions by counsel on behalf of the appellants made before the state conceded, and the various authorities I was referred to. The complainant’s testimony was that on 15/10/2009 about noon, he went to Co-op Bank Murang’a and withdrew Ksh. 60,000/= on his personal cheque. He went, had lunch with a business colleague, then left for Kamotho Tyres Shop within the town. It was here that he found a motor vehicle KVY .513N one of whose occupants called him from inside the car–telling him he appeared suspicious. He spoke to them, went to the shop, did not find the owner and came back to the car. He was told to board the motor vehicle, which he did. He sat in the back where he found one passenger.

In his testimony in court he described the 1st accused was the driver, the 3rd accused sat on front passenger seat, the 2nd accused was in the back. As soon as he entered the car, he was asked for his identity card, and the whereabouts of his garage. He gave out the ID and directions to his garage but before they reached the garage, the motor vehicle was stopped and the person he sat with covered him with a jacket, while trapping his legs. He had assumed they were police officers. Then he knew otherwise. He realized they were now on the Murang’a/ Sagana Road.

He was attacked and someone was trying to break his vocal cords with a walkie talkie. It is not clear from his testimony how he could tell with this head covered with a jacket, that the it was the 3rd accused, who was seated at the front with the driver who was doing this. He hit the walkie talkie and it fell. The 3rd accused took a wheel spanner and attacked him with it. A struggle ensued and he was cut on the neck. By this time, they were turning onto to a rough road. They threatened him about his children though he said he had none. They gave him his ID, and took his Ksh. 80,000/=. They dumped him on the road where a good Samaritan took him to hospital.

He reported to the police. He was later called for an identification parade of the suspects, which never took place but identified the motor vehicle which was photographed.

On cross examination he said he saw motor vehicle reg. No. KBJ 513N. none of the persons who assisted him when he was dumped by the thieves testified. He did not produce any bank statement to show that he had withdrawn Ksh. 60,000/= on the material date. He did not explain how the amount rose from 60,000/= to 80,000/=. He did not give a description of the car to the police neither did he give any description of the attackers.

P.W.2 James Kariuki was the witness who was allegedly at the scene when the complaint, whom he kept referring to as ‘John’ was called to the car. He told the court it was KBJ 513N make Toyota Rancer. That the complainant left in that car only to come back later in the company of police officers while bleeding from the neck, claiming that he had been robbed of Ksh. 85,000/=.

On cross examination he confirmed that he had not seen the occupants of the motor vehicle, and he never gave the police the description of the said motor vehicle/it’s make.

The rest of the witnesses were the police officers who arrested the appellants and who conducted investigations in the case.

Clearly, there was no basis even for the charge in the 1st place for the offence of robbery with violence. c/s 296(2) of the Penal Code. The complainant did not provide the police with proof that he had withdrawn Ksh. 60,000/= from the bank that day, and had in his possession Ksh. 20,000 or Ksh. 25,000/=. They had no evidence that the injury he had sustained had been sustained in the process of being robbed.

On the 2nd count, nowhere in his testimony did the complainant say that that the appellants or the persons who allegedly robbed him identified themselves as police officers or showed him any police identification or even threatened him arrest using handcuffs. There was absolutely no evidence that any of the three and/or attackers identified themselves as police officers.

Secondly although PW10 No.212921 SSP Binyamire Mwariko confirmed that the force number on the ‘fake’ certificates was for a serving officer, a P.C, Andrew Kipngetich Korir that officer never testified.

In each of their defences, the appellants explained where each one was on the material date. Peter Waihiga Kabiro the 2nd appellant gave evidence of his car hire business, which demonstrated that on the day of the alleged robbery he was not in possession of m/v registration no KBJ 513N which was alleged to have been used in the robbery. The prosecution’s failure to provide any rebuttal evidence pulled their case off its feet as it clearly doubtful as to whether on the alleged date the 2nd appellant was at the scene of the robbery. This pulled out the co accused taking into consideration that they were alleged to have committed the offence jointly.

There was no investigation of the complainant’s report of what happened on 15th October 2009. After his report the next thing was his summons to Murang’a police station to attend an ID parade. He said this was in November 2009. By then the appellants had not been arrested. PW 6 no. 232908 IP Samson Amdanya went to conduct the ID parade on the 13th January 2010.

Similarly, the evidence of no. 58160 PC Erick Githinji on the photographing of the m/vehicles KBJ 513N and KBK 280A was conflicting and confusing. It is not clear whether it was done on 3rd January 2010 or 13th January 2010. He said the 1st one was photographed on the 3rd January 2010 at Murang’a police yard. The I.O PW12 testified that that KBJ was taken to Murang’a on the 7th January 2010.

The state conceded after the appeal had been argued. I have taken into consideration all the arguments and the authorities cited.

I am satisfied that the grounds for conceding the appeal are supported by the record.

The appeal is allowed. The conviction is quashed. Each of the sentences meted against the appellants is set aside. Unless otherwise legally held, the appellants are to be set free forthwith.

Dated, delivered and signed in open court this 8th Day of November 2017

Teresia Matheka

Judge

In the presence of;

Court Assistant Hariet

Appellants

Ms. Gicheha holding brief for Ms. Jebet for State

Mr. Ng’arua for 1st Appellant, also holding brief for Mr. Wahome Gikonyo for 2nd Appellant

Mr. Wambugu holding brief for Mr. Mutembei for 3rd Appellant.